On Report and Recommendation of the Board on Professional Responsibility. (BDN 112-95, 421-95, 362-96 & 321-00).
Before Terry and Ruiz, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor, Senior Judge
In response to a number of complaints made to the Office of Bar Counsel against respondent by private citizens and a judicial officer, Bar Counsel, after investigation, presented evidence of multiple violations of the District of Columbia Rules of Professional Conduct ("Rules") to three hearing committees. There is little, if any, dispute about the underlying factual accounts surrounding respondent's professional conduct in these matters. Thus, the Board on Professional Responsibility ("Board") adopted the findings of fact and conclusion of law of each hearing committee. The Board, after reviewing the recommended sanctions from each committee, respectively, recommends a suspension from the practice of law for an extended period of years in addition to a requirement of a showing of fitness for reinstatement and payment of restitution. Relying essentially on the same evidentiary facts, Bar Counsel recommends disbarrment. Although both recommendations are well founded, we adopt the Board's recommendation of an extended suspension from the practice of law with requirements of proof of fitness and payment of restitution.
A. Hearing Committee No. 1
Hearing Committee No. 1, in a consolidated proceeding involving separate complaints from three different clients -- Iris Richard, Janice Bean and Robert Adams -- found respondent to have violated multiple provisions of the Rules.
In September 1993, Iris Richard ("Richard") retained respondent to represent her in a discrimination action against her employer. Respondent and Richard executed a retainer agreement which provided for an attorney's fee of $9,000.00. Richard made an initial payment of $4,500.00 in January 1994, with the balance due in six months. Respondent advised Richard that it was necessary to file an administrative claim with the Equal Employment Opportunity Commission ("EEOC") by April 1, 1994. Although respondent promised Richard that he would file the claim with the EEOC on her behalf, he failed to do so and never advised Richard of this fact.
In June 1994, Richard left a message with respondent that she was unable to pay the balance of the retainer; respondent did not return her call. Thereafter, Richard unsuccessfully attempted to contact respondent on several occasions. In January 1995, respondent informed Richard that he had been ill and had deferred action on her case because she had not payed the balance of the retainer. In the summer of 1995, Richard asked respondent to provide her with a copy of the administrative claim that she assumed had been filed with the EEOC on her behalf; respondent did not respond to her request. On August 4, 1995, Richard wrote respondent requesting a copy of the complaint purportedly filed, on her behalf, in the United States District Court for the District of Maryland. Respondent informed Richard by letter that "[he] ha[d] not gone forward with [her] matter because [she] indicated an inability to pay the balance of the retainer agreement." In his letter, respondent acknowledged that the limitations period had run on one of Richard's claims, but assured her that she could still file a remaining claim pursuant to 42 U.S.C. § 1981. Seeking to resolve the matter amicably, respondent enclosed a check in the amount of $2,250.00 (i.e., half of the initial retainer payment).
In September 1995, Richard wrote to respondent stating her dissatisfaction and requesting a full refund of her initial retainer payment. Respondent did not comply. Richard filed a complaint with Bar Counsel on October 3, 1995.
Hearing Committee No. 1 found that respondent (1) failed to represent Richard zealously and diligently when he did not communicate with Richard, and failed to take the necessary steps to preserve her discrimination claims, in violation of Rule 1.3 (a); (2) intentionally failed to seek the lawful objectives of Richard through reasonably available means when he abandoned her case due to her inability to pay the balance of the retainer fee, in violation of Rule 1.3 (b)(1); (3) failed to act with reasonable promptness in representing Richard when he failed to file her claim with the EEOC within the limitations period, in violation of Rule 1.3 (c); and (4) failed to keep Richard reasonably informed about the status of her case when he chose not to advise her that her claim had not been filed within the EEOC limitations period, and failed to promptly comply with her reasonable requests for documents, in violation of Rule 1.4 (a).
In March 1994, Janice Bean ("Bean") retained respondent to represent her in a discrimination action against her employer. Respondent and Bean executed a retainer agreement, and in June 1994, respondent filed a civil complaint against the employer in the Superior Court, alleging seven causes of action, including claims under 42 U.S.C. §§ 2000e et seq. ("Title VII of the Civil Rights Act of 1964"), 42 U.S.C. § 1981, and the District of Columbia Human Rights Act.*fn1
On August 17, 1994, the employer caused Bean's case to be removed from Superior Court to the United States District Court for the District of Columbia. Thereafter, the employer filed an answer to Bean's complaint as well as a counterclaim. The employer also filed a motion to dismiss a number of Bean's claims, including her Title VII cause of action; respondent failed to oppose the motion. In an order dated September 2, 1994, the District Court granted the employer's unopposed motion to dismiss in part, dismissing all of Bean's claims without prejudice except her claim under the D.C. Human Rights Act. Respondent did not inform Bean of the ruling. The District Court's order also established time-lines for the parties to file future motions as well as a schedule for pre-trial discovery. On September 2, 1994, the employer moved for summary judgment on its counterclaim. Respondent did not file an opposition, but instead filed an answer to the counterclaim. The employer informed the District Court that the parties had scheduled a settlement conference for September 12, and that the employer's maximum settlement offer for Bean's suit was $3,424.10. Respondent did not advise Bean of the employer's offer of settlement. At the September 12 settlement conference, respondent agreed to make Bean available for deposition by the employer. The parties also agreed to make initial discovery disclosures by September 22, 1994. The employer formally noticed Bean's deposition for September 27, 1994, and made its initial discovery disclosures as agreed. Respondent did not advise Bean of her scheduled deposition, and failed to make his discovery disclosures by the September 22nd deadline. Thereafter, respondent failed to respond appropriately to a number of discovery obligations. On October 3, 1994, the employer filed a motion to dismiss for discovery violations; respondent did not oppose to the motion. The court held a status conference via telephone and although respondent had notice of the status conference, he did not participate. Following the status conference, the court issued an order modifying its previous scheduling order, extending the discovery deadline to December 31, 1994, and setting a further status conference for January 3, 1995.
Bean attempted to contact respondent throughout September 1994, but her calls were not returned. She contacted respondent on October 3, 1994, informing him that she had located a potential witness and requested a meeting with respondent. She received no response until October 31, 1994, when respondent informed her that he had been injured and would speak with her shortly. Bean renewed her request for a meeting. On November 23, 1994, the employer notified the District Court and respondent that ...